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W&L Obtains Substantial Settlement in Challenging Negligence Case

December 30, 2015
Home Firm News W&L Obtains Substantial Settlement in Challenging Negligence Case

Weitz & Luxenberg last month obtained a confidential multimillion-dollar settlement on behalf of a Queens, New York, man who sustained a traumatic brain injury, as well as other injuries, after falling from an apartment building’s second story walkway next to an apartment.

The settlement came on the heels of a hard-won appellate victory that W&L secured after pursuing the matter all the way to the New York Court of Appeals, the highest court in the New York state.

The settlement is particularly impressive considering the facts of the accident. “He fell from the walkway at 4 in the morning while he was intoxicated,” said Lawrence B. Goldhirsch, trial counsel and W&L’s lead attorney for the injured man.

The plaintiff, in his mid-30s, had accompanied friends to a comedy club for a night of laughter and drinking. Afterward, the group returned to the second floor apartment of one of the friends.

Once arriving at the apartment, the plaintiff opened a window and clambered outside onto the 5-foot-wide walkway.

This walkway was an architectural feature of the second through fourth floors of the multistory building. It served an aesthetic purpose but also a structural one, by functioning as a roof over the apartments immediately below.

The walkways on the building’s first four floors were inaccessible except the through the windows facing them. Nonetheless, many tenants routinely used the walkways outside their own apartments like a terrace.

Co-lead counsel Jonathan M. Sedgh said the plaintiff got too close to the open edge of the walkway outside the friend’s apartment, lost his balance and plunged 25 feet to the pavement.

“He was rendered unconscious by the impact and for a time was in a coma,” said Mr. Sedgh. “He ended up losing most of his ability to walk — he now needs a wheelchair to help him get around — and he has difficulty speaking.”

W&L’s Negligence Arguments Were Strong

In the negligence lawsuit brought on the injured man’s behalf, W&L asserted that the building owner owed a duty to keep the premises reasonably safe.

The plaintiff alleged that the owner breached that duty by failing to install a parapet or a fence along the outer edge of the walkway.

“New York state law and the New York City Administrative Code require walkways like the ones found at this apartment building to have a minimum 36-inch-tall parapet or fencing around the edges to prevent people from falling off,” said Mr. Goldhirsch.

“Our position was that the failure to install a parapet violated both the state law and city code,” he continued. “Violating the statute had the effect of making the building owner negligent. Violation of the code did not qualify as negligence per se, but was evidence of carelessness.”

Mr. Goldhirsch explained that the owner defended against this claim by arguing that the building was not subject to the statute or the code, since the building was erected prior to their enactment.

“But we had evidence to show that the building was structurally modified after the law and the code took effect,” he said. “That made the building subject to both and so a parapet was required.”

W&L Prevents Bid to Dismiss

The case eventually went to trial, but during the jury selection process W&L asked that the jury be dismissed after determining the fact-finders were unalterably biased against the plaintiff due to his intoxication.

“Most of the jurors said they could not be fair with our client because they felt that anyone who had been drinking and then gone out onto a 5-foot walkway at 4 in the morning had only himself to blame for what happened,” said Mr. Goldhirsch.

The building owners had made a motion earlier in the case for summary judgment to have the case dismissed.

W&L persuaded the lower court judge to deny the motion, which the defendants appealed, claiming the judge erred by not granting summary judgment.

The Appellate Division, the intermediate appeals court agreed with the defendant, saying summary judgment would have been proper because the building owner had no duty to protect intoxicated persons who venture out onto walkways where they have no authorization to be.

Further, the court held it was not foreseeable that an intoxicated person would climb out a window and onto a setback. Absent this foreseeability, the building owner could not be found negligent.

The intermediate appeals court’s adverse decision could have ended the plaintiff’s hopes of recovering for his losses. But W&L was determined to see that he received the justice he sought.

So W&L pressed on and appealed the intermediate court’s decision to the state’s highest court. Thanks to the strong arguments made by W&L’s attorney Alani Golanski who argued the appeal, the high court was persuaded to reverse the court below it.

“The high court agreed with us that the walkway might be subject to state law and city code requiring a parapet,” said Mr. Goldhirsch.

“The court also held it is foreseeable that tenants of New York City buildings with setbacks will try to access those areas for use and enjoyment as a terrace,” he added.

The high court’s decision cleared the way for the plaintiff’s case to pick up where it left off in the trial court. At that point another co-defendant, the building owner’s excess insurer, offered to settle.

“The secondary insurance company realized it stood to lose a potentially very sizable amount of money by letting this case be decided by the jury,” said Mr. Sedgh.

However, the primary insurance company refused to settle, insisting on taking its chances in court. Eventually, though, the primary insurer thought the better of it and it, too, agreed to settle.

“We are very pleased by how this case turned out for our client,” said Mr. Goldhirsch. “It is always gratifying to us to be able to see that justice is done.”

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